Criminal law — Appeals
— Powers of Court of Appeal — Reasonable verdict — Jurisdiction of a court of
appeal to consider whether there was a miscarriage of justice — Whether there
was a miscarriage of justice.

E.M.W. was convicted of sexual
assault. A majority of the Court of Appeal allowed an appeal and ordered a new
trial. It held that the trial judge had improperly used pre‑trial
statements by the complainant in ways that assisted the Crown’s case, and that Crown
counsel’s questioning and conduct had rendered the trial unfair.

Held (Fish J. dissenting): The appeal
should be allowed and the respondent’s conviction should be restored.

Per McLachlin C.J. and Binnie, Deschamps,
Abella, Charron and Cromwell JJ.: A failure to raise miscarriage of
justice as a distinct ground in a Notice of Appeal does not deprive a court of appeal
of jurisdiction to consider whether there was a miscarriage of justice. The
shortcomings in the trial did not result in a miscarriage of justice. The
trial judge’s reasons do not support an inference that the complainant’s pre‑trial
statements were used improperly. Crown counsel did not ask impermissible
leading questions. Crown counsel’s conduct did not affect the trial judge’s
appreciation of the evidence or render the proceedings unfair.

Per Fish J. (dissenting): The trial was
unsatisfactory. Crown counsel’s cross‑examination was inappropriate and
prejudicial. Defence counsel did not attenuate the prejudicial effect of Crown
counsel’s cross‑examination. Nor did the trial judge’s detailed and
thoughtful reasons set things right.

[2]After a trial before judge alone, E.M.W. was
convicted of sexual assault of his daughter, who at the trial was 12 years old
(2009 NSPC 33 (CanLII)). A majority of the Court of Appeal (Beveridge and
Farrar JJ.A.) allowed E.M.W.’s appeal from conviction and ordered a new trial,
on the ground of miscarriage of justice (2010 NSCA 73, 295 N.S.R. (2d) 141).
Fichaud J.A. dissented, on the view that the grounds relied on by the majority
were not raised in the Notice of Appeal, and that in any event, a miscarriage
of justice was not established.

[3]In this Court, three points were argued.

Jurisdiction to Consider the Issue
of Miscarriage of Justice

[4]The first question is whether the majority of
the Court of Appeal erred in allowing the appeal, given that the issues of
miscarriage of justice and admissibility of the evidence were not raised in the
Notice of Appeal. We agree with the respondent that the failure to expressly
raise miscarriage of justice as a distinct ground of appeal does not deprive a
court of appeal of jurisdiction to consider that issue. A potential
miscarriage of justice is always something a court must be able to consider.
However, the fact remains that the rules require that the grounds that the
appellant relies on be set out. This ensures that the opposite party has
notice of what will be raised. More broadly, it ensures that the court
receives full submissions on all the issues that will be raised. Where
additional grounds come to light after filing, good practice requires that the
grounds be amended. If the court wishes to explore an issue that has not been
raised, it may be necessary to grant an adjournment to ensure a full and fair
hearing.

[5]The respondent argues that despite the economy
of the Notice of Appeal, the appeal hearing was full and fair. We need not
linger over this question. Suffice to say that the Court of Appeal had
jurisdiction to hear submissions on whether there had been a miscarriage of
justice, and the issues were fully canvassed before this Court, whatever may
have been the case below.

Improper Use of Prior Statements

[6]The complainant had made statements to a friend
and to the police on the matter, before testifying at the trial. The majority
of the Court of Appeal was of the view that these statements had been
improperly used or alluded to, in ways that bolstered the evidence of the
complainant or otherwise assisted the Crown.

[7]In our view, the majority of the Court of Appeal
was wrong to seize on the trial judge’s reference to the content of the
complainant’s disclosures to show that he had improperly used the evidence
about these disclosures. The trial judge’s careful and thorough reasons when
read as a whole in light of the trial record do not support the inference drawn
by the majority of the Court of Appeal.

Did the Conduct of the Trial
Constitute a Miscarriage of Justice?

[8]This trial was far from perfect. At times,
questions were asked or statements made that were tasteless, indeed unsavoury.
Crown counsel’s soliloquizing on personal matters was unnecessary. However, we
are not satisfied that these defects, however unfortunate, affected the trial
judge’s appreciation of the evidence or rendered the proceedings unfair, so as
to give rise to a miscarriage of justice.

[9]We do not agree with the majority of the Court
of Appeal that Crown counsel asked impermissible leading questions of the
complainant. Leading questions are questions that suggest an answer or assume
a state of facts that is in dispute. Here the questions put by Crown counsel
to the complainant in examination-in-chief did not cross this threshold. Crown
counsel, in meeting the challenge of a child reluctant to respond, asked binary
questions that gave her a choice between alternatives. They did not, however,
suggest an answer. The main components of the offence were elicited from the
complainant by non-leading questions. We are not satisfied that her evidence,
viewed as a whole, was improperly obtained by leading questions.

[10]We do not find it necessary to go into detail on
the other allegations of failings in the trial. The trial judge’s reasons show
that he was alive to the concerns raised by inappropriate aspects of the trial,
and took them into account in his careful and detailed reasons. The
shortcomings of the trial therefore did not, in this case, result in a
miscarriage of justice.

Conclusion

[11]We would allow the appeal and restore the
conviction.

The following are the reasons delivered
by

[12]Fish J. (dissenting) — With respect for those who are of a different view,
I have concluded that the respondent’s trial was unsatisfactory ― notably
because of the inappropriate and prejudicial cross-examinations of the
respondent and N.L., the complainant’s grandmother, who was an important
defence witness. The failure of defence counsel to object hardly attenuates
the prejudicial effect of the impugned cross-examinations. Nor do defence
counsel’s inexplicable questions regarding the respondent’s refusal to submit
to a polygraph test justify the Crown’s persistent cross-examination suggesting
that the respondent’s reason for refusing to do so can only be explained by his
guilt. Finally, I recognize that the trial judge delivered detailed and thoughtful
reasons for concluding as he did (2009 NSPC 33 (CanLII)). In my respectful
view, however, they cannot set right the unsatisfactory nature of the trial.

[13]Accordingly, without endorsing in their entirety
the reasons of the majority in the Court of Appeal (2010 NSCA 73, 295 N.S.R.
(2d) 141), I agree that the respondent is entitled to a new trial and would
therefore dismiss the Crown’s appeal to this Court.

Appeal allowed, Fish J. dissenting.

Solicitor for the
appellant: Public Prosecution Service of Nova Scotia, Halifax.

Solicitor for the
respondent: Dartmouth Professional Centre, Dartmouth.

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